David
Vincent Bober, Esq. Office of the United States Attorney
Counsel for Defendants

OPINION

NOEL
L. HILLMAN, United States District Judge

Plaintiff
Alfred Doty, an inmate currently confined at the Federal
Correctional Institution (“FCI”) in Fort Dix, New
Jersey, filed this civil rights action pursuant to 42 U.S.C.
§ 1983 and paid the filing fee. (ECF No. 1.) On August
3, 2015, Plaintiff filed an Amended Complaint. (ECF No. 8.)
On November 16, 2015, Defendants filed a Motion to Dismiss in
lieu of an Answer. (ECF No. 20.) On June 15, 2016, the Court
granted Defendants' motion and dismissed the amended
complaint without prejudice in its entirety. (ECF Nos. 29,
30.) The Court allowed Plaintiff to file a second amended
complaint (“SAC”), which he did on July 29, 2016.
(ECF Nos. 31.) The Court conducted its sua sponte screening
of the SAC and permitted it to proceed. (ECF No. 32.) In lieu
of an answer, Defendants filed the instant Motion to Dismiss
(ECF No. 37), Plaintiff filed Opposition (ECF Nos. 40-42),
and Defendants filed a Reply (ECF No. 44). The Court has
considered the submissions of the parties and decides this
matter without oral argument pursuant to Federal Rule of
Civil Procedure 78. For the reasons discussed below, the
Court will grant the Motion in part and deny it in part.

I.
BACKGROUND

In the
SAC, Plaintiff alleges that on and before August 24, 2013, he
was incarcerated at FCI Fort Dix and housed in Unit 5711.
Plaintiff states that another inmate at FCI Fort Dix
(“Unknown Inmate”) was confined to a different
housing unit at that time. Despite being housed in a
different unit, Plaintiff states that on August 24, 2013,
Unknown Inmate entered Unit 5711 and assaulted Plaintiff.
Plaintiff states that he suffered significant injuries and he
alleges that the assault occurred as a direct and proximate
result of the negligence of the Defendants. Specifically,
Plaintiff asserts that “the Fort Dix Defendants
breached their duty to keep Plaintiff reasonably safe and
protect him from assault by Unknown Inmate by allowing
Unknown Inmate to gain unauthorized access into Unit 5711 and
assault Plaintiff.” (SAC ¶ 29.) Plaintiff alleges
that Defendants have a mandatory obligation, pursuant to the
“Institution Supplement on Inmate Accountability,
” to “account[] for inmates within their control,
and account[] for inmates that are not where they should be,
” which was violated on August 24, 2013. (Id.
at ¶¶ 30; 31.)

Plaintiff
further asserts that Defendants acted with deliberate
indifference to Plaintiff's health and safety and, in
doing so, violated his Eighth Amendment rights. Finally,
Plaintiff contends that Defendants are liable to him for
their failure to train, supervise, control and discipline the
individual correctional officers. Plaintiff seeks actual and
exemplary damages in the amount of $5, 000, 000.00.

The
United States has sovereign immunity except where it consents
to be sued. United States v. Bormes,133 S.Ct. 12,
16, (2012); United States v. Mitchell,463 U.S. 206,
212 (1983). In the absence of such a waiver of immunity,
Plaintiff cannot proceed in an action for damages against the
United States. See FDIC v. Meyer,510 U.S. 471,
484-87 (1994).

[1] against the United States, [2] for money damages, ... [3]
for injury or loss of property, ... [4] caused by the
negligent or wrongful act or omission of any employee of the
Government [5] while acting within the scope of his office or
employment, [6] under circumstances where the United States,
if a private person, would be liable to the claimant in
accordance with the law of the place where the act or
omission occurred.

The
FTCA, however, does not encompass all torts committed by
federal government employees. Rather, the
“discretionary function” exception provides that
the provisions of the FTCA shall not apply to any claim
“based upon the exercise or performance or the failure
to exercise or perform a discretionary function or duty on
the part of a federal agency or an employee of the
Government, whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a). To determine whether
the discretionary function exception applies, a court must
determine (1) “whether the act involves an
‘element of judgment or choice, ” and (2), if so,
“‘whether that judgment is of the kind that the
discretionary function exception was designed to
shield.'” Mitchell v. United States, 225
F.3d 361 (3d Cir. 2000) (quoting United States v.
Gaubert,499 U.S. 315, 322 (1991)). More specifically,
with respect to the second requirement, the discretionary
function exception “protects only governmental actions
and decisions based on considerations of public
policy.” Berkovitz v. United States, 486 U.S.
531, 537, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). See
generally S.R.P. ex rel. Abunabba v. United States, 676
F.3d 329 (3d Cir. 2012).

In its
previous dismissal Opinion, the Court found that
“although Plaintiff alleged that Defendants were
negligent by: (1) leaving the front door unlocked in between
ten minute moves; (2) failing to monitor the housing unit
while the door was unlocked; (3) failing to have sufficient
guards stations in and near the unlocked door; and (4)
failing to confine Unknown Inmate, neither the Amended
Complaint, nor any of Plaintiff's subsequent filings,
refers to any federal statute, regulation, or policy
requiring the BOP to take these specific courses of
action.” (Opinion 13.) The Court further found that
Plaintiff's reliance on the Inmate Handbook policy was
...

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